JURIST Guest Columnist Dr. Sandra Mantu of Radboud University discusses France’s upcoming vote on a bill that would grant the legislator authority to revoke citizenship of natural born citizens…
On February 10, 2016, the French National Assembly adopted a bill—Constitutional Law to Protect the Nation—that introduces in the French Constitution provisions dealing with the declaration of the state of emergency and specifies that the legislator has the competence to regulate nationality law, including conditions under which a person can be deprived of French nationality or of the rights attached to it where she has been condemned for a crime or offense that constitutes a serious violation of the nation’s life. The French Senate (upper house) will vote on the text on March 22, 2016. To become law, the bill needs to receive a 3/5 majority; based on the results in the National Assembly (162 in favor, 148 against and 22 abstentions) one expects a close vote. This article will focus only on the issue of citizenship deprivation and the legal implications of the proposed measures.
What are the rules?
At present, citizenship deprivation is regulated by the French Civil Code that sets down the rules for the acquisition and loss of French nationality. French law distinguishes between perte (loss) regulated by Article 23 of the Civil Code and décheancé (deprivation) regulated by Article 25 of the Civil Code. Article 23 covers voluntary and involuntary loss of nationality and its personal scope can include—depending on the specific case—persons who acquired French nationality by birth, whereas citizenship deprivation is applicable only to persons who have become French after birth (naturalized citizens). Loss of nationality is considered something of an academic provision since in the recent past it has never been used. Since 1998 (law no. 98-170 of 16 March 1998) a person can be deprived of citizenship only if she is not made stateless by the measure, which in fact means that the person has more than one nationality. Naturalized citizens may have their naturalization withdrawn in cases of fraud or misrepresentation according to Article 27-2 of the Civil Code. The latter case is the most common ground for loss of French nationality.
Citizenship deprivation based on Article 25 of the Civil Code sanctions lack of allegiance (defaut de loyalisme) in the following circumstances:
(1) conviction for acts against the fundamental interests of the nation, or conviction for ordinary or serious offenses which constitute acts of terrorism;
(2) conviction for crimes considered to be crimes against the public administration (crimes committed by persons holding a public office);
(3) conviction for acts of insubordination in relation to performance of national service;
(4) engaging, for the benefit of a foreign state, in acts that are incompatible with the quality of French national and commission of acts that are prejudicial to the interests of France. No prior conviction is necessary.
Since 2003 citizenship deprivation can occur for facts prior to the person’s acquisition of French nationality. As a rule, deprivation can be pronounced only within 10 years of the perpetration of the facts. In 2006 the time limits increased to 15 years in case of acts of terrorism or acts against the fundamental interests of the nation. Citizenship deprivation entails an administrative procedure that gives the executive the power to decide whether to pursue a citizenship deprivation or not. The person concerned must be notified of the government’s intention to deprive, and be given the opportunity to make observations and mount an appeal (Decree no. 93-1362). The order to deprive has to specify the legal and factual grounds upon which the measure is taken; the authorities can proceed with deprivation only after the favorable opinion of the Council of State. The Council of State is a body of the French government with a dual function: (a) legal adviser of the executive branch on state issues and legislation, and (b) supreme court for administrative justice. The concurring opinion is issued as part of its consultative function. Citizenship deprivation operates only for the future.
What will change?
The constitutional bill clarifies that the legislator has the competence to regulate nationality law, including deprivation of nationality and that any French national can be subject to a citizenship deprivation measure, irrespective of how she acquired nationality. There is no indication that the French executive or legislator intend to water down the protection against statelessness introduced in 1998. With the occasion of the new bill, there has been talk of France ratifying the 1961 UN Convention on the Reduction of Statelessness; no concrete steps have been taken yet.
If the bill is adopted by the Senate in its current form, the French legislator will be able to make changes to the current provisions on loss of nationality. It is unclear whether this will take the form of abrogating altogether Article 25 of the Civil Code and replacing it with a new provision applicable to all French citizens irrespective of how they acquired citizenship or whether Article 25 will survive but a new case of citizenship deprivation will be added alongside it. The initial proposal was phrased differently from the current text—the provision only referred to the possibility to deprive of citizenship French citizens by birth; it did not cover naturalized citizens for whom Article 25 of the Civil Code was the relevant provision. The text adopted by the National Assembly applies to all persons holding French nationality giving the ordinary legislator the power to create a single framework applicable to the citizenship deprivation of all French citizens, provided that they hold another nationality.
Prior to this constitutional bill, there have been several unsuccessful attempts to modify the provisions of the Civil Code in respect of citizenship deprivation. In 2014 proposals were put forward to deprive of citizenship all French dual nationals if arrested, caught or identified fighting against the French armed forced, their allies or the French police forces. The proposal was rejected by the Constitutional Law Commission of the French Parliament. This failure explains the need to amend the French Constitution since most political parties and the executive believed that the Constitutional Council will not approve an ordinary law allowing dual nationals to lose French nationality acquired at birth. In a decision from 1996 (upheld in 2015) the Council stated that although naturalized citizens and citizens by birth enjoy a similar position in respect of nationality law, differential treatment between the two categories in the context of the fight against terrorism is justified as long as citizenship deprivation is limited in time. Historically, French citizens by birth have never been covered by the scope of legal provisions on citizenship deprivation and there is an ongoing discussion as to whether one can speak of a constitutional and republican principle preventing such Frenchmen from losing their nationality—the Constitutional Council will have the final say if and when asked to decide.
Below is a short analysis of the main elements of the proposal:
Personal scope: any person who has French nationality, irrespective of how nationality was acquired. This includes all modes of citizenship acquisition be it at birth or later on in life. The person must have another nationality, thus the measure will only be relevant for dual or multinationals.
Material scope: the person must be condemned for a crime or offense that constitutes a serious violation of the nation’s life; the conviction must be final. There is no definition of what constitutes a serious violation of the nation’s life and the ordinary legislator will have to clarify the scope of this notion if it will proceed to amend the rules on citizenship deprivation. The formulation resembles one of the grounds listed in Article 25 of the Civil Code but the latter covers a broader range of acts for which citizenship deprivation can be engaged in respect of naturalized citizens. When introducing the law in Parliament, the prime minister referred to crimes of terrorism, treason, espionage and similarly serious crimes affecting the life of the nation. He underlined that only the most serious crimes and offenses will justify a measure of citizenship deprivation including direct financing of terrorism, individual acts of terrorism and participation in a criminal group or constitution of a criminal group that intends to commit terrorist acts. Under the current rules, citizenship deprivation affecting naturalized citizens can occur for both terrorism crimes and offenses, which include a wide range of activities. It remains to be seen whether such a large material scope can be justified in relation to French-born citizens or whether the scope needs to be much more limited.
Effects: deprivation of nationality or of the rights attached to it. The possibility to be deprived of the rights attached to nationality is a novelty explained by the fact that persons holding only French nationality cannot lose it since they would become stateless. Thus deprivation of the rights attached to nationality can be seen as an alternative measure to be used where citizenship deprivation is not possible. In practice this would lead to a person losing those rights that only French citizens can have—political and voting rights, as well as the right to hold certain official positions. Deprivation will operate only for the future and will have an individual character, thus the spouse and children of the person concerned will not be affected by the measure.
The ordinary legislator will have to decide whether citizenship deprivation should remain a prerogative of the executive or become a complementary sanction to be administered by a judge as part of the judicial procedure leading to the condemnation of the citizen of a crime covered by the notion of serious violation of the nation’s life.
How effective will a new law be?
Citizenship deprivation has been rarely used by the French executive and since 1973 there are 13 reported cases of citizenship deprivation for acts of terrorism and acts against the fundamental interest of the nation (2015—five; 2014—one; 2006—five; 2003—one and 2002—one). President Hollande announced his intention to change the law after the events of November 2015, although his party was against similar proposals in 2014. In light of the attacks that took place in 2015 and in which a number of French born citizens were involved, politically it became necessary to demand that such citizens be deprived of French citizenship. Moreover the government is concerned about the number of French citizens involved in terrorist fighting abroad (sometimes against French troops)—if born French they cannot be deprived of citizenship, even if they were dual nationals. The allegiance of dual French-Algerian citizens who under current rules cannot be deprived of citizenship since they acquired French citizenship at birth based on double jus soli has been a constant presence in public and political debates about changes to nationality law. Although the proposed law is couched in terms meant to reflect the republican principle of equality between citizens, since only dual nationals can be deprived of citizenship, the measure will affect primarily French citizens of immigrant background whose allegiance to the French nation has been constantly questioned by the far-right. The new measure is seen even by its initiators as having a limited and primarily symbolic effect. The Council of State reached a similar conclusion in its opinion [PDF] on the bill when stating that citizenship deprivation will have a limited dissuasive effect for those planning to commit terrorist acts bearing in mind also that citizenship deprivation can only be applied against persons who have been condemned of very serious crimes in line with the principles of proportionality and necessity. Moreover France is bound by several human rights conventions; it is unclear whether a person deprived of citizenship can be that easily removed from France. Concerns that citizenship deprivation leads to the creation of de facto stateless persons seem justified. Although symbolic, the proposed measure sends a strong message about who belongs to the French nation, at least from the perspective of the French authorities.
Sandra Mantu is researcher at the Centre for Migration Law of the Faculty of Law of the Radboud University Nijmegen.
Suggested citation: Sandra Mantu, Citizenship Deprivation in France: Between Nation and the Republic, JURIST – Academic Commentary, March 17, 2016, http://jurist.org/forum/2016/03/sandra-mantu-french-citizenship.php
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